And Now the Wait Begins ...... | Eastern North Carolina Now

   Publisher's note: Earlier we published an excerpt of what has now evolved into what one might consider the ultimate in a developed opinion. We are thankful to have the opportununity to bring this well constructed understanding of the Patient Protection & Affordable Care Act's (ObamaCare's) proverbial "day in court."

   The Obama Administration's "day" in the United States Supreme Court actually lasted three, with 6 hours of argument. Here below is an account of what really happened, and what may well be the outcome, and why.

    On Monday, March 26, the Supreme Court began oral arguments in the highly-anticipated case challenging the constitutionality of the Patient Protection & Affordable Care Act. By Wednesday afternoon, the hearings had concluded. The historic arguments are an appeal from 26 states, a group representing several small businesses, and several individuals who contend that the 2010 health care law, President Obama's signature legislative achievement, is unconstitutional.

    Perhaps significantly, Justice Kennedy, the Court's notorious swing vote, appeared to be very concerned about the status of young people with respect to the healthcare bill. He noted that the government hasn't exactly been honest about its intentions with the bill, which was to offset the burden that uninsured individuals place on healthcare.

    If the administration was really interested in preventing young people (many who are uninsured) from being such a burden, the healthcare plan would allow them to buy only catastrophic health insurance (instead of the plan that includes well visits, preventative care). Catastrophic health insurance is all that 20-30 year-olds really need; It's the only product that makes any economic sense for them. But Obamacare doesn't allow that. So, as Kennedy emphasized, we see what the healthcare bill is really all about. It's about using 20-30 year-olds to subsidize the plan, to subsidize insurance for those who can't afford it. It's about using young healthy people to fund the program. It's about a social scheme.

    As we all know, the government's plan is to subsidize health insurance for everyone, especially those who are uninsured and sick (approximately 20% of all uninsured). The plan forces insurance companies to cover the sick. But it doesn't want to use the typical means to pay for this - such as tax subsidies. Instead, the government wants to reach OUTSIDE the market and COMPEL a whole bunch of healthy people into that market so they can be used to subsidize the program and help bring healthcare premiums down. In fact, this was the finding by Congress: that bringing young healthy people into the market will bring down the health insurance premium by about 15% for everyone. Unfortunately, though, it will force them to buy something they don't need or want.

    The healthcare challenge, on its face, is about the Individual Mandate - the government's belief that it has the power under the Commerce Clause to force Americans to purchase the specific health insurance it dictates, even those who don't need it. It is also about the fundamental scheme in place, established by our Founders and memorialized with the Tenth Amendment, that the federal government is a government of limited powers with the bulk of powers being reserved to the States where they can most effectively regulate for the health, safety, welfare, and morality of their people. It is about the section of the bill which enlarges the Medicaid program and coerces the States to participate in its healthcare scheme by threatening to withhold all Medicaid funding should they decide not to. According to the states, the sheer volume of the federal funding at stake leaves them with no practical capacity to withdraw from Medicaid. By placing all of a state's federal Medicaid dollars at risk for the failure to adhere to the healthcare bill's conditions, they claim the Act also amounts to compulsion. And furthermore, they claim that conditions imposed on state governments to implement the scheme constitutes impermissible commandeering of the states and their resources.

    But the underlying issue is individual liberty. It is about the right of an individual to be free from government compulsion - not being forced to do something against one's will or spending one's money (that is, what remains after the government takes its cut in the form of income taxes) on things one don't want or need. It's the fundamental right to conduct one's life the way he or she feels fit and to make his or her own personal decisions. It's the basic right "to be left alone" by government.

    And the decision, therefore, will speak volumes about how strongly our nation's highest court is committed to this grand notion of individual liberty. We already know that there are several justices who believe in an expansive view of government and use the court to evolve its responsibilities. And there are those justices who believe in the strict interpretation of the Constitution and in limits to federal power. And then there is Justice Kennedy, who can be defined by neither classification. His opinion may turn out to be the deciding factor in this case.

    All eyes are usually on Justice Kennedy, the genial justice who sits on the fence, often keeping interested parties nervous as to which side he will side with - the liberal bloc (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) or the conservative bloc (Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and the Chief Justice John Roberts). Kennedy was appointed to the bench in 1988 by President Reagan, after the Senate failed to confirm his first choice, committed originalist Robert Bork. Reagan also appointed Justice Scalia. At the time of his appointment, he was a judge on the US Court of Appeals for the Ninth Circuit, appointed by President Gerald R. Ford. The Ninth Circuit is known as the most liberal of the circuit courts, and in fact, tried to remove the words "Under God" from the Pledge of Allegiance. Justice Kennedy's crucial swing vote has often been the decisive factor in many of our most important and controversial cases of recent years.

    • Boy Scouts of America v. Dale (2000; upholding the Boy Scouts of America's organizational right to ban homosexuals from being scoutmasters. He joined the conservative justices in this decision)

    • Lawrence v. Texas (2003; finding the right of homosexual men to engage in sodomy in the privacy of their home thereby overturning an earlier Supreme Court decision which banned the practice. He joined the liberal justices on this decision)

    • Kelo v. City of New London (2005; holding that local government has the power to take private property for economic development through the use of eminent domain. He joined the liberal justices in this decision)

    • United States v. Lopez (2005: holding that possession of a gun in a local school zone is not an economic activity that might, in the aggregate, have a substantial effect on interstate commerce because the conduct at issue has nothing to do with "commerce." He joined the conservative justices in this decision)

    • Kennedy v. Louisiana (2008; holding that the 8th Amendment bars Louisiana from imposing the death penalty for the heinous rape of a child where the crime did not result, and was not intended to result, in the victim's death, although the injuries were so extensive, doctors don't know how she survived. Kennedy joined the liberal justices on this decision)

    • Boumediene v. Bush (2008; a case challenging the legality of Boumediene's detention at Guantanamo Bay. Kennedy sided with the four liberal justices in finding that the constitutionally guaranteed right of habeas corpus applies to persons held in Guantanamo Bay and to persons designated as enemy combatants on that territory)

    • District of Columbia v. Heller (2008; holding that the 2nd Amendment confers an individual right to keep and bear arms; All four of the liberal justices believe it only applies to state militias and therefore prevents individuals from having the right to possess guns in their homes)

    • McDonald v. City of Chicago (2010; holding that Heller applies to the States through the 14th Amendment. holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. Kennedy sided with the conservative justices in asserting that these rights are "fundamental to the nation's scheme of ordered liberty" and are "deeply rooted in this Nation's history and tradition" and hence are appropriately applied to the states through the 14th Amendment)

    • Brown v. Plata (2011; holding that releasing violent criminals from an over-crowded prison is a proper remedy to address the violation of prisoners' 8th Amendment guarantee against 'cruel and unusual punishment' caused by long wait times to see prison doctors and less-than-ideal medical accommodations)
The United States Supreme Court building in early March, 2012: Above.     photo by Stan Deatherage
    In the 2008-2009 term, there were 16 decisions in which the justices split strictly along ideological lines. Kennedy joined the conservative members of the Court eleven times and the liberals only five.

    And so, all eyes were on Justice Kennedy in the case against the Patient Protection & Affordable Care Act (PPACA) and all ears were open to his questions and comments, in the hopes of providing a glimpse into his mindset regarding the administration's huge power grab under the Act.

    On the first day of hearings, the justices had to entertain whether the healthcare challenge is even allowable under the Anti Injunction Act (AIA), a federal tax law that says, in essence, that a taxpayer cannot challenge a tax until it comes into effect. The provision at issue is the penalty portion of the Act, which requires that almost every individual purchase health insurance by 2014 or pay a penalty. The questions before the Court were twofold: (1) Can the penalty be classified as a "tax" and therefore implicate the AIA? And (2) If so, is it then premature for the court to consider the present challenge to the individual mandate?

    Justice Breyer asked point blank: "Where I see the problem is in the part of the AIA which refers to the 'assessment or collection of any tax.' Now, Congress has nowhere used the word 'tax.' What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code 'but for purposes of collection.' And so why is this a tax?" He further emphasized that lawmakers intentionally did not use the term when they crafted the legislation nor did they intend the penalty as a tax.

    Justice Ruth Bader Ginsburg, another liberal member of the Court, also expressed skepticism. "This is not a revenue-raising measure because, if it's successful, nobody will pay the penalty and therefore there will be no revenue to raise."

    Judging on the arguments and discussion made the first day, it seems likely the case will be decided and not postponed. Even the administration's lawyer, Solicitor General Donald B. Verrilli urged the justices to decide the merits of the dispute. "This case presents issues of great moment," he said.

    On the second day of hearings Verrilli faced a barrage of skeptical questions from four of the court's more conservative justices, including Justice Kennedy. The questions posed to him went straight to the central issue in the case and that is whether the federal government can compel individuals not engaged in commerce to buy a product - health insurance - and hence become part of that commerce in order to be regulated. "Can you create commerce in order to regulate it?" Justice Kennedy asked. That was his very first question of the day. He later told Mr. Verrilli that the federal government faced "a heavy burden of justification" for the Individual Mandate and pressed him to articulate "some limits on the Commerce Clause."

    The court focused on whether the mandate for Americans to have insurance "amounts to an affirmative duty to engage in commerce" and is therefore "an unprecedented step beyond what our cases allow," which is how Justice Kennedy phrased the issue. He then told Verrilli: "With this law, you are changing the relationship of the individual to the government."

    Chief Justice Roberts asked: "So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? That way, you can just dial 911 no matter where you are?" Verrilli tried to argue that Roberts' scenario was distinguishable from the health care market. But Roberts fired back: "It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best of its ability that you get it."

    Justice Alito asked Solicitor General Verrilli: "Do you think there is a, a market for burial services?" He answered in the affirmative. Alito then continued: "All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else. Isn't that a very artificial way of talking about what somebody is doing?" Verrilli didn't agree. But Alito pushed further: "And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services? See, I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference? If you don't have money then someone has to pay... Whether the State or a family member. And isn't that what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO (Congressional Budget Office) has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016. The administration estimates that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else." Verrilli acknowledged that this was in fact the case.

    Chief Justice Roberts commented: "It's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve - must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase. Your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are never going to need pediatric or maternity services to participate in that market."

    He then asked: "If the government can force people to buy health insurance can it require people to buy certain types of cars? Broccoli?" Justice Scalia hinted that if everyone were forced to buy a new car, it might help lower the costs of new cars for everyone.

    Scalia offered his interpretation of the government's case: "I don't agree with you that the relevant market here is health care. You're not regulating health care. You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it. That approach is different from the regulation of any type of commerce that already exists out there."

    Solicitor General Verrilli tried to paraphrase the government's position: "Our position is that it's not an illegitimate exercise of the commerce power for some people to subsidize others. You're young and healthy one day, but you don't stay that way. And the system works over time."

    Justice Scalia spoke up: "We're not stupid. They're going to buy insurance later. They're young and need the money now. When they think they have a substantial risk of incurring high medical bills, they'll buy insurance, like the rest of us. You seem to suggest that they are never going to buy it. You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not require them to sell it to him at a rate that he sells it to healthy people. But you don't want to do that. And to me, that seems like a problem created by the government - a self-created problem."

    Chief Justice Roberts added: "You say your argument is limited to health insurance But once you establish that you have a market for health care, would you suppose Congress's power under the Commerce Clause is broad in scope with regard to how they they regulate that market. I don't see how we can accept your argument that 'it's just insurance.' Once we say that there is a market and Congress can require people to participate in it, as some would say - or as you would say, that people are already participating in it - it seems to me that we can't say there are limitations on what Congress can do under its commerce power. It could regulate the market in any rational way. Congress has chosen to regulate the health care market. Everybody's in it, they said, so it can be regulated. This year, they looked at a particular serious problem, which is how people pay for it. And they decided to compel people to purchase insurance. But next year, they can decide to look at something else - a different problem - and decide how they are going to regulate it. And they'll be able to do it because they've already accepted the argument that this is a market in which everybody participates."